UNITY AND DIVERSITY IN SOCIALIST LAW JoHN N. HAZARD* PRE-UNION SOVIET LAW Unity of law was a major casualty of the Russian Revolution. Lenin not only permitted the various ethnic groups which had formed the Russian Empire to secede and create their own legislation; he also made no provision for an appellate tribunal within the new Russian Republic to unify the practice of courts in the various provinces. This was the more remarkable because these courts were authorized to go their own way without regard to centralized guidance. The first decree on the courts1 instructed newly created "people's courts" to decide the cases brought before them on the basis of Tsarist legislation, but only to the extent that this had not been specifically revoked and was not contrary to the revolutionary conscience and revolutionary consciousness of the judge. Common concepts of socialist morality rather than unified legislation became the rock on which the judges were to build. The plan now looks Utopian, but it appeared less so to the communists who were creating the new Russia. To many of them Marxist doctrine was prophetic. It anticipated the ultimate withering away of the state, with its instruments, the courts and the law, as soon as a reorga- nized economy had produced abundance and a re-educated citizenry had come to understand its social duty. Though no one was prepared to predict, and Lenin even suggested that the process would be rather lengthy, the achievement of com- munism was expected to come sooner rather than later. A common culture with a common morality was not so far off as to lack reality.? The Commissar of Justice explained the possibilities in a handbook published during the summer of I9i8. In his words, "there appears a new legal conscious- ness, that is, an internal conviction, first of a few individuals, and later of a group, and then of a whole class, and finally of all mankind." He demanded that this revolutionary legal consciousness become a standard of the people's judges. He admitted that the process of freeing the judges to decide as their concept of morality required would result in some instability and vacillation of law, but he thought this desirable. Eventually, the highest organs of government could discern a desirable approach and fix it in new laws, but meanwhile improvisation was to be on an individual basis. Even such guide lines as were provided by the old Tsarist legisla- * Professor of Public Law, Columbia University. 1 2 Nov. 2, 1917 (old style), [1917-1918] I Sob. Uzak. RSFSR, No. 2, item x8. See Kline, "The Socialist Legality" and Communist Ethics, 8 NATURAL L.F. 21 (x963). 8 p. L STUCHKA, NARODNYI sun v VOPROSAxH I ovvAs, (THE PEOPLE'S CoURT IN QUosrnoNs AND ANsWERS) (Moscow, 2g8). UNITY AND DivERsiTY IN SOCIALIST LAW tion were removed by the People's Court Act of November 30, I9i8,' which forbade reference to pre-revolutionary laws. Guides became such legislation as the new government had enacted (very limited and largely pertaining to criminal law) and each judge's socialist concept of justice. A minimum standard was provided through creation of a "council" of people's court judges to be named by a general meeting of judges in each province or great city, and approved by the provincial government. Its duties were to review records of the courts and to order new trials in the event of substantial violation or in- correct application of decrees, in the event of incomplete investigation, and in the event of clear injustice. Here was the beginning of a form of review to assure uniformity of interpretation not only of statutes but of revolutionary conscience as well. Still, it was not a formal unifying force on a national scale. Not until Lenin found intolerable the variation in application of law from province to province was a national leveller created. 5 The Commissar of Justice in a January 20, 192o, circular complained of lack of uniformity, and he documented his complaint by citation of a considerable num- ber of variations in penalties, as well as approaches to civil law problems. The People's Court Act of October 21, 192o,6 introduced a three line note which was to be the basis for subsequent establishment of a Supreme Court. Yet, it was vague. It provided only that the Commissariat of Justice would have the right of supreme control over criminal sentences and civil decisions of the people's courts and the provincial councils of people's judges. Soon thereafter the Commissariat created a department of court control.7 It was this department that began to fill gaps in the legislation, and thus to provide uniformity where the limited number of statutes established no common rule. In the complete absence of a civil code, this became important especially in the civil law field, as when the department established the rights of a bona fide purchaser on the ground that the precision necessary to civil law relationships made it impossible to permit a bona fide purchaser to be deprived of possession simply because the original owner had given a third person a bill of sale.' The department also made choices when there were competing policies between which a trial court could not be expected to choose with any assurance. While the Russian Republic was developing some unity of law primarily through judicial practice, the governments of other republics created on the ruins of the Russian Empire faced the problem of deciding whether their legislative and judicial policies should be coordinated with those of the Russian Republic. The Belorussian Republic, which was only a fraction of what it became after Soviet acquisition of '[ 1917.9i8 I Sob. Uzak. RSFSR, No. 85, item 889. 'Not included] in any of the various collections of documents but available only in the original under the title Narodnyi Komissariat Iustitsii, ianvaria 2o dnia x92og, tsirkuliar No i. 6 [1920] I Sob. Uzak. RSFSR, No. 83, item 407. 7 Nov. 26, 1920. Charter of the People's Commissariat of Justice, [z920] I Sob. Uzak. RSFSR, No. go, item 465. 'Ezh. Soy. lust., No. 3 (Jan. 15, 1922), p. 1o, Case II. 272 LAW AND CONTEM1PORARY PROBLEMS eastern Poland during the Second World War, seems always to have been close to the Russian Republic and to have copied the work of its leadership. Its judges tele- graphed the Russian Republic's Commissar of Justice in December 1918, to praise him for his authorship of the 1918 People's Court Act.' This makes strange reading if one supposed that the two republics were independent of each other. Yet, subsequent events help to clarify the relationship. In 1920 the Belorussian Republic's legislature voted to send delegates to meetings of the Russian Republic's legislature and even to unite its administrative ministries with those of the Russians. The governing body of the Azerbaidjan Republic made the same request at that time. II UNION AND UNIFICATION, 1922-1936 Formal union was clearly being anticipated by some of the republics well before formal union became a fact through treaty on December 29, 1922. The Russian Republic's Judiciary Act of October 31, 1922,10 was adopted by the sister republics as their own, although with some delays. Only the draftsmen in the Ukrainian Republic showed signs of some desire to improvise, for they published their draft of a civil code in the summer of 1922 prior to preparation of the Russian Republic's draft. Years later Soviet authors admitted that the Russians had profited from Ukrainian experimentation.11 Generally, however, even the Ukrainians were con- tent to follow Russian initiative. As soon as the Ukraine had been cleared with Russian help of invading armies and local opponents, the first decree on courts adopted the Russian formula and declared that "the only source of court activity is revolutionary conscience." The first statute on the court system of February 19, 1919,-1 was in the model of the Russian Republic, although not of its first decree. The Ukrainian communists took up the pattern as it stood in the Russian Republic when they came into power. It was not Russia's first decree on the court that they copied, but its third. The Ukrainians jumped over the experiment the Russians had made during the first year with both a people's court for routine cases and a special district court to clear up cases held over from pre-revolutionary times. Gen- erally, thereafter, the Ukrainians followed Russian models, but with some delay and occasional slight variation. Unification of law was becoming a fact in the various republics that had been created on the territory of the old Empire, but there was no apparent unifying state mechanism. No unification commission issued reports, but there was obviously interchange of documents. When the Ukrainian Commissar of Justice published on August 4, :920, the Russian Republic's circular defining criminal law and establish- ing what was later to become the general part of the criminal code of 1922, he made Prol. rev. i pravo, No. i (ii) (January, 1919), p. 124. 0192] I Sob. Uzak. RSFSR, No. 69, item 902. "See N. 1. Avdeenko and M. A. Kabakova, Grazhdanskoe protsessnl'noe pravo (Civil Procedure Law), published in I 40 LET SovETsKoGo PRAVA (FoRTY YEARS OF SoviET LAw) at 653 n.36 (x957). " [ i919] I Sob. Uzak. Uk., No. ii, item 141. UNITY AND DIvER SITY IN SocIALIsT LAw 273 no effort to disguise the origins of his model, for he referred to the Russian circular as his source.' Understanding of this system of unification without formal state machinery requires no elaboration beyond reference to the communist party, and Lenin's plan for reunification of the peoples of what had been the Russian Empire.